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New Austrian law of succession - important changes from the testator's perspective

On 1 January 2017, the amendment to the Austrian law of succession went into force and applies to the succession of persons who died since then.

The amendment provides new formal requirements for testaments. However, former depositions upon death continue to be valid. A testament that is not made by handwriting, e.g. written on the computer, or set up by a lawyer or notary, has to be signed personally and confirmed before three witnesses. What is new is that all witnesses have to be simultaneously present. In addition, the testator now must add the phrase: “This is my last will”. This shall increase counterfeit protection. Also new is that the witnesses’ names and surnames and dates of birth have to be recorded in the document. The witnesses also have to sign the document with an additive that indicates their capacity as witness (e.g. “as requested witness”). They further have to be capable to be a witness. Biased are all persons who benefit from the depositions upon death as well as spouses, parents, children, siblings and relatives by marriage in the same degree. Another new change is that civil partners and partners of beneficiaries are excluded from being witnesses.

The debarment from succession is expanded. Debarred is not only a person who has committed a criminal offence against the deceased but also a person who has committed a criminal offence against the deceased’s estate, e.g. in cases of embezzlement, destruction or theft of estate objects and unauthorized withdrawals. New is that the testator can disinherit a person who has committed a criminal offence against the spouse, civil partner or partner of the deceased, who has caused psychological grief to the deceased or has gravely breached obligations resulting from the legal relationship between parents and children. Another change is that the testator (only personally) can abolish debarment and disinheritance by forgiveness. This can be done expressly or implied, e.g. by appointing the person as heir.

The possibility to reduce the reserved shares of legal heirs is expanded. The reserved shares can be reduced by half, if a family relationship never existed between the testator and his/her child. Now, the reduction is also permitted if a family relationship did not exist over a long period before the death of the testator. According to the legislative materials, estrangement of at least ten years is required. New is that the reduction of the reserved shares is also possible in respect of the testator’s spouse or civil partner. Altogether, the amendment provides more flexibility to the testator.

Compare jurisdictions:Restructuring & Insolvency

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